MANU/UP/0001/1959

Equivalent Citation: AIR1959All1, (1958) 28 AWR 703

IN THE HIGH COURT OF ALLAHABAD

FULL BENCH
Civil Revn. No. 461 of 1952
Decided On: 28.10.1957
Appellants: Yar Muhammad and Ors.
Vs.
Respondent: Lakshmi Das and Ors.
Hon'ble Judges/Coram:
Raghubar Dayal, Gopalji Mehrotra and Ambika Prasad Srivastava, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: V.K.S. Chaudhary, Adv.
For Respondents/Defendant: B.S. Darbari, Adv.
Case Note:
Civil - maintainability of suit - Section 242 of U.P. Tenancy Act, 1939 and
Section 9 of Specific Relief Act, 1877 - jurisdiction of Civil Court - Section 242
does not give exclusive jurisdiction to Revenue Court - it does not either bar
jurisdiction of Civil Court - wrongful dispossession - suit under Section 9 -
essential requirement - plaintiff to prove he was in possession and is
dispossessed unlawfully - no question of title to be raised or considered - a
decree under Section 9 may be upset in regular suit - yet no Court can refuse
to entertain suit under Section 9 on pretext of discouraging multiplicity of
litigation.
JUDGMENT
Ambika Prasad Srivastava, J.
1. This Full Bench has been constituted to consider the question
"Whether the jurisdiction of the Civil Court is barred by virtue of Section 242 of
the U. P. Tenancy Act in respect of suit filed under Section 9 of the Specific
Relief Act for obtaining) possession over agricultural land from which the
plaintiff alleged his illegal dispossession within six months of the date of the-
suit".
The reference has been made by Mukherji, J. as he felt that there was a conflict between
two Division Bench decisions of this Court, the one being in the case of Ganga Din v.
Gokul Prasad MANU/UP/0153/1950 : AIR1950All407 and the other being an unreported
decision in Jag Narain v. Bhagwati Prasad, Civil Revn. No. 1548 of 1951 (since reported
i n MANU/UP/0019/1958 : AIR1958All48 and that it was desirable that the conflict be
resolved.
2. The learned counsel wanted to argue a point in connection with Section 40(2) of the
Land Revenue Act also but we did not allow him to do so because only the question

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mentioned above has been referred to us.
3 . The plaintiff filed the suit on 30-11-1948 for possession under Section 9 of the
Specific Relief Act alleging that they were in actual possession of the land in dispute
(which was admittedly an agricultural land) but had been wrongfully dispossessed by
the defendants otherwise than in accordance with law i n November 1 9 4 8 . The
defendants contested the suit and disputed the correctness of the plain-tiff's allegations.
They said that they had themselves been in possession of the land as tenants of the
plaintiff for more than 12 years. It was therefore not open to the plaintiffs to eject
them. They also pleaded that the plaintiffs had filed the suit under Section 9 of the
Specific Relief Act only to evade the jurisdiction of the revenue court as the suit if filed
there could never succeed.
4 . The learned Munsif rejected the plea of want of jurisdiction relying on the case of
MANU/UP/0153/1950 : AIR1950All407 . On facts he accepted the plaintiff's case and
rejected that of the defendants, He therefore decreed the suit. The defendants then filed
the application in revision out of which the present reference has arisen and it was
contended on their behalf that the view taken by the learned Munsif about the
applicability of Section 242 of the U. P. Tenancy Act was not justified and the case on
which he relied in support of that view had not been correctly decided. The learned
counsel sought support for his contention from the decision in Civil Revn. No.
MANU/UP/0019/1958 : AIR1958All48 (B).
5 . Five contentions, some of which clearly over- lap each other, were urged by the
learned counsel for the applicants in support of the plea that the plaintiffs' suit was
cognizable only by the Revenue court. They are:
(1) Section 242 of the U. P. Tenancy Act is wide in its scope and imperative in
nature. The history of the enactment shows that it has always been the
intention of the Legislature to keep the revenue court as the only forum in
which all disputes relating to agricultural land should be triable. Whenever
courts made an attempt by interpreting the law to give concurrent or alternative
jurisdiction in such matters to the civil court, the Legislature intervened and
made bar excluding the jurisdiction of the Civil Court more stringent and
comprehensive.
Whatever may be the nature of the dispute, therefore, if it relates to agricultural
land and can in any way be considered to be of the nature specified in the
Fourth Schedule of the U. P. Tenancy Act, the revenue court alone is entitled to
hear it. No other court can have jurisdiction to entertain it. While enacting
Section 242 of the U. P. Tenancy Act the Legislature made no exception in
favour of suits filed under Section 9 of the Specific Relief Act. The plaintiffs
cannot therefore be allowed to escape the bar of Section 242 simply by framing
the suit as one under Section 9 of the Specific Relief Act.
(2) As Section 242 stands, a claim based on any cause of action in respect of
which any relief can be obtained by means of a suit or application in the
revenue court can be filed only in the revenue court. The term "cause of action"
used in the section has a wide and comprehensive meaning. It covers all the
facts that have happened prior to the date of the suit on account of which the
plaintiff got a right to claim the relief he wants.
Keeping this wide meaning of the term in view, everything happening before
the suit on account of which the plaintiff can claim any relief constitutes his

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 cause of action and if in respect of it, he can claim any relief in a suit or
application filed in the revenue court he has no option but to go to that court
for that relief. The relief which the revenue court ran grant him may not be
adequate and may not be identical with the relief which the plaintiff wants. If
any relief of any kind can be had from the revenue court that court is the only
court to which recourse can be had. Going to the civil court is out of question.
(3) A plaintiff is bound to put forward in his plaint the actual and the real cause
of action. As the term covers all the facts that have happened till the date of the
suit he is bound to put forward all those facts, It is not open to him to allege an
unreal or incomplete cause of action, nor can he be allowed to twist the facts or
to put forward only a part of the cause of action with a view to take away the
jurisdiction of the revenue court and confer it on the civil court.
If he does so, the civil court may in the first instance entertain his suit initially
because the allegations in the plaint alone are to be seen for deciding the
question of jurisdiction, but as soon as it comes to the notice of the court that
the full facts have not been alleged, that something had been concealed, or that
some facts have been twisted, the civil court will refuse to deal with the matter
and will decline to entertain the suit. The plaintiffs in the present case could
not, therefore, file the suit in the civil court simply by alleging possession and
dispossession. They should have alleged the full facts and circumstances and
had they done so it would have been found that the suit was really one which
could have been filed under Section 180 of the U. P. Tenancy Act. As soon as
the learned Munsif came to know of this he should have dismissed the suit.
(4) Even if the plaintiffs had filed a suit with incomplete or twisted allegations
and their suit was initially entertained by the civil court under the impression
that it could be tried by it as soon when the defendants appeared and put all
the facts before the court, the court should have non-suited the plaintiffs
leaving them to seek their remedy in the proper Revenue Court.
(5) Though complete facts had not been given by the plaintiffs in their plaint in
essence the suit was a suit for the ejectment of alleged trespassers and was
clearly covered by Section 180 of the U. P, Tenancy Act. The learned Munsif lost
sight of this fact when he entertained the suit and held it to be cognizable by
him.
(6) Section 242 of the U. P. Tenancy Act, as it stood immediately before its repeal by
the Zamin-dari Abolition and Land Reforms Act, provided as fellows:
"Subject to the provisions of Section 286 all suits and applications of the nature
specified in the Fourth Schedule shall be heard and determined by a revenue
court, and no court other than a revenue court, shall, except by way of appeal
or revision as provided in this Act, take cognizance of any such suit or
application, or of any suit or application based on a cause of action in respect
of which any relief could be obtained by means of any such suit or application.
Explanation I: If the cause of action is one in respect of which relief might be
granted by the revenue court, it is immaterial that the relief asked for from the
civil court may not be identical with that which the revenue court could have
granted.
Explanation II: If the cause of action is one in respect of which relief might be

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 granted by the revenue court under Section 180, it is immaterial that the relief
which may be asked for from the civil court is greater than or additional to that
which the revenue court could have granted.
Example: If in a suit under Section 180 a person claims damages exceeding
four times the annual rental value, he cannot oust the jurisdiction of the
revenue court by framing his relief as such".
The corresponding section in the earlier Agra Tenancy Act of 1926 was Section 230 of
the Act. As originally enacted, that section contained the word 'adequate' before the
word relief. By Act XIII of 1039, however the word 'adequate' was omitted from that
section and when the section was reehcted in Section 242 of the U. P. Tenancy Act of
1939, the word 'adequate' was not re-introduced. As it originally stood, the second
explanation and the example were not there in Section 242. They were added by
Section 22 of the U. P. Amending Act X of 1947. The same section introduced the word
'any' in the first paragraph before the word relief.
7. These changes were apparently necessitated by the interpretations that were put by
this Court on the section. Under the N. W. F. Tenancy Act, 1901, suits against
trespassers could not be filed in the revenue court. When that Act was in force suits
against trespassers on agricultural land were entertained by the civil courts alone. The
Agra Tenancy Act of 1926 was then enacted and Section 44 of that Act permitted a
landholder to sue for the ejectment of a person taking or retaining possession of land
without his consent and in contravention of the provisions of the Act.
It also entitled him to claim if he liked damages which could extend to four times the
annual rental value of the rent applicable to statutory tenants, Section 230 of the Act
made a suit under Section 44' triable exclusively by the revenue court and also provided
that if adequate relief could be obtained by a suit of that nature, recourse could not be
had to the civil court. A question then arose whether Section 230 look away entirely the
jurisdiction of the civil court to try suits for ejectment of trespassers on agricultural
land. In the case of Mohammad Muslim v. Mahrania MANU/UP/0035/1927 :
AIR1927All369 , a Full Bench of this Court took the view that in spite of Sections 44 and
230 of the U. P. Tenancy Act, the civil court and the revenue court continued to have
concurrent jurisdiction to entertain suits against trespassers.
The only difference was that if the landholder plaintiff considered that four times the
rent was adequate enough for him he could file the suit in the revenue court. If,
however, he wanted to claim a greater amount of damages he could file the suit in the
civil court. This interpretation of the law was based on the use of the word 'adequate' in
Section 230 as it was originally enacted, The decision in Mohammad Muslim's case (C)
was followed in a number of cases, and the Legislature obviously felt that undue
importance had been given by the Full Bench to the word 'adequate' in Section 230.
By Act 13 of 1939, therefore, the word adequate was omitted from that section. Soon
afterwards the Agra Tenancy Act of 1926 was substituted by the U. P. Tenancy Act of
1939 and Section 230 of the Agra Tenancy Act was enacted in the new Act as Section
242. The word 'adequate' was not there in the new section. The question what was the
effect of the omission arose for consideration in Parmeshari Das v. Angan Lal
MANU/UP/0081/1943 : AIR1944All81 . In that case it was held that the omission was
immaterial and that the word 'relief' which continued in the section meant the relief
claimed by the plaintiff or a substantial portion of it and not "any relief".
This view was not accepted by the Legislature with the result that by the U. P.

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Amending Act X of 1947 the word 'any' was inserted before the word relief in* the first
paragraph of Section 242 and a second explanation and example were added to the
section. The intention was to make it clear that if in respect of a cause of action any
relief, whatever be its nature or extent whether it was adequate or inadequate, could be
obtained by means of a suit or application mentioned in the Fourth Schedule of the
Tenancy Act, the suit on that cause of action was to be filed in the revenue court and
could not be entertained by the civil court.
8 . It is however not possible either on the basis of the terms of Section 242 or on
account of the several amendments introduced in it from time to time to uphold the
contention of the learned counsel for the applicants that the Legislature intended that
provided it relates to agricultural land every kind or suit irrespective of its nature or
scope was to be triable by the revenue court alone and could not be filed in the civil
court. The section confers exclusive jurisdiction on the revenue court and at the same
time takes away the jurisdiction of the civil court only in respect of two kinds of actions.
(1) suits or application of the nature specified in the Fourth Schedule of the
Act, and
(2) suits or applications based on a cause of action in respect or which any
relief can be obtained by means of a suit or application specified in that
schedule.
9 . Before Section 242 can be attracted, therefore, the action must fall under either of
these two categories. If it does not, the jurisdiction of the civil court will not be ousted
and the revenue court will have no jurisdiction to entertain the action. The other entries
in the Fourth Schedule are admittedly inapplicable. The suggestion of the learned
counsel is that the relief claimed by the plaintiff could have been claimed in a suit either
under Section 180 or 183 of the Act which are entered in the Schedule under serial Nos.
18 and 19.
10. In order to see whether the plaintiff's suit partook of the nature of a suit under
Section 180 or 183 of the Tenancy Act, or was based on a cause of action in respect of
which any relief could be obtained by means of a suit under those sections, one will
have to bear in mind the purpose and object of Section 9 of the Specific Relief Act and
the essential nature of a suit under that section on the one hand and the nature and
essential features of suits under Sections 180 and 183 of the Tenancy Act on the other.
11. Possession is prima facie evidence of title and if a person who is in possession is
dispossessed he has a right to claim back possession from the person who dispossesses
him. In an ordinary suit of that kind if the plaintiff succeeds in establishing his title as
well as possession he is bound to succeed. Even if he is unable to prove his title he can
succeed on the basis of prior possession alone. But the suit can easily be defeated if the
defendant succeeds in proving a good title in himself or another. In that case the
presumption in favour of the plaintiff is displaced.
In such a suit, therefore, the title of both the parties can be brought in issue and can be
considered by the court. A suit under Section 9 of the Specific Relief Act is however an
entirely different kind of action. That section gives a special privilege to persons in
possession who take action promptly. In case they are dispossessed it entitles them to
succeed simply by proving
(1) that they were in possession,

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 (2) that they have been dispossessed by the defendant,
(3) that the dispossession is not in accordance with law, and
(4) that the dispossession took place within six months of the suit.
12. No question of title either of the plaintiff or of the defendant can be raised or gone
into in that case. The plaintiff will be entitled to succeed without proving any title on
which he can fall back upon and the defendant cannot succeed even though he may be
in a position to establish the best of all titles. The restoration of possession in such a
suit is however always subject to a regular title suit and the person who has the real
title or even the better title cannot therefore be prejudiced in any way by a decree in
such a suit. It will always be open to him to establish his title in A regular suit and to
recover back possession.
13. The obvious objects for the attainment of which the section was enacted appear to
be these :
(1) Law respects possession even if there is no title to support it. It will not
permit any person to take the law in his own hands and to dispossess a person
in actual possession without having recourse to a court. No person can be
allowed to become a judge in his own cause. As observed by Edge, C. J., in
Wali Ahmad Khan v. Ajudhia Kandu ILR 13 All 537 :
"The object of the section was to drive the person who wanted to eject
a person into the proper court and to prevent them from going with a
high hand and ejecting such persons."
The same thing was expressed recently by Mootham, C. J. and Hari Shankar, J., in Dr.
M. C. Batra v. Lakshmi Insurance Co. Ltd. 1956 AL J 392 : AIR 1959 All 709 when they
observed :
"The object of the section is to discourage people) from taking the law in their
own hands, how-ever good their title may be."
(2) In the interest of public order self-help is not permitted so far as possession, over
Immovable property is concerned. The section is, therefore, intended to discourage and
prevent proceedings which might lead to serious breaches of me peace. It does not
allow a person who has acted high-handedly by wrongfully dispossessing a person in
possession from deriving any advantage of his own unjustified act.
(3) It prevents all attempts to shift the burden of proof by illegal dispossession. As
Phear, J., put it in Kalee Chunder Sein v. Adoo Shaikh 9 SWR 602 :
"A person turned out of possession by a stranger and invoking the assistance of
court of law, would go into a court seeking to eject one who has possession,
and, therefore, by the general rules of procedure, the burden would be placed
upon him to prove a prima facie title, before the defendant would be called
upon whereas had it not been for the high-handed act of violence, which had
turned the plaintiff out of possession, the defendant could not have obtained
the land in question, except, upon some condition, viz., of discharging the onus
of showing a prima facie title; and we imagine that the Legislature considered it
advisable to do away with opportunity thus laying open to powerful persons, of
shifting by wrongful acts the burden of proving from their shoulders to those of

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 persons less able to support it."
14. Section 9, therefore, provides for a summary and quick remedy for a person who is
in possession but is illegally ousted therefrom without his consent. As this remedy is a
summary one and is intended to restore the status quo ante, all questions of title
whether of the plaintiff or the defendant are out of place in it, and cannot on that
account be allowed either to be raised or to be considered. This seems to be a peculiar
feature of this kind of suits and distinguishes it from suits of other kinds.
15. Suits under Sections 180 and 183 of the U. P. Tenancy Act appear to He of an
essentially different nature. They are not summary suits based en possession and
dispossession alone. It is not possible to exclude considerations of titles from such
suits. In fact the very opening words of Section 183 makes it quite clear that before a
person can maintain a suit under that section he must be a tenant: Even if he is in
possession and has not been dispossessed he cannot succeed without proving that he
was in possession as a tenant.
The suit can easily be defeated if the defendant proves that the plaintiff was not a
tenant and that the person who has dispossessed him was neither the landholder nor a
person claiming to have a right to eject him as a landholder. In a way, therefore, the
question of the title of the plaintiff as well as the defendant must necessarily arise in
such suit.
16. In a suit under Section 180 also, as was pointed out in MANU/UP/0153/1950 :
AIR1950All407 (A):
"But, as will be seen from its language, the section contemplates a suit by a
person "entitled to admit the defendant as a tenant" and speaks of the suit "of
the person so entitled". It is, therefore, clear that a suit under Section 180 is
instituted by a person who has some title to the land and who has the power to
admit the defendant as a tenant. This conclusion is reinforced when we
consider Sub-section (2). When a suit is not brought under the section the man
in possession becomes, on the expiry of the period of limitation, a hereditary
tenant of the land.
In order that a person should Become a hereditary tenant of the land, the
omission to sue must be the omission of the person who has title to the land
either as a landlord or as a tenant-in-chief or in some other capacity. It is
obvious, therefore, that in a suit under Section 180 the plaintiff has to allege
that he has a title to the land".
It was urged that the section which was being considered in that case was the section
as it stood before it was amended by the U. P. Tenancy (Amendment) Act of 1947. The
amendments made by that Act made an essential difference. There appears to be no
force in this contention. The only amendments made by the Act of 1947 which can be
material for our present purpose are the amendments by which tenants were also
allowed to take advantage of the section and that by which the section became available
against co-sharers.
These amendments certainly increased the scope of the section but did not in any way
make a suit under that section analogous to a suit under Section 9 of the Specific Relief
Act. Even under the section as it stands after the amendments the person who could
maintain a suit is the person who can show that he is entitled either as a landlord or a
tenant to admit another person to tenancy. The provisions of Sub-section (2) of the

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section remain unaltered.
If the person who has taken possession is to acquire the rights of a hereditary tenant on
account of omission to sue under the section it is obvious that the omission must be of
a person who has some sort of title to the land. The question of title is therefore not
altogether foreign to the suit and is in fact bound to be considered in some form or
other.
17. Learned counsel pointed out that a trespasser in possession of the land could hold
it against the entire world except the true owner and could even admit a person to
tenancy. He urged that a trespasser, too could therefore sue under Section 180 of the
Tenancy Act. No doubt a trespasser can claim certain rights. If, however, he files a suit
under Section 180, his claim will be based not on possession and dispossession alone
but on the rights which he can claim on the basis of his possession. It is this feature
which essentially distinguishes a suit under Section 180 of the Tenancy Act from a suit
under Section 9 of the Specific Relief Act.
In a suit for the latter kind no question of rights arises at all. The only thing to be seen
is whether the plaintiff was in possession and had been dispossessed within a certain
time otherwise than in accordance with law. A suit of this kind is not contemplated by
Section 180 or 183 or in fact any other section or the Tenancy Act and could not
therefore be intended to be excluded from the jurisdiction of the civil court by Section
242 of the Act.
18. The argument that even if the plaintiff's suit could not be considered to be a suit
which was included in any of the entries in the Fourth Schedule, it was certainly a suit
based on a cause of action in respect of which some sort of relief could be obtained by
a suit under Section 180 of the Tenancy Act also appears to be untenable. It is based on
a misconception of the term 'cause of action' used in Section 242. According to the
learned counsel (and in this contention he has the support of certain observations made
in the case of Jag Narain v. Bhagwati Prasad (B),) the term 'cause of action' means
"everything that has happened up to the date of the suit."
Taking that to be the meaning of the term he urges that if on the basis of everything
which has happened before the suit the plaintiff can claim any relief in the revenue
court he must file a suit there. The plaintiffs in the present case who were zamin-dars
had according to their own pleadings been dispossessed by the defendants. The
defendants claimed tenancy rights in the land and also claimed that they had been in
possession of it for some time.
All these facts constituted the plaintiffs cause of action and the plaintiffs were therefore
bound to allege all these facts in their plaint. In respect of this cause of action a suit
could have been filed under Section 180 of the U. P. Tenancy Act and some relief could
have been claimed in it. The plaintiffs could not therefore avoid going to the revenue
court unless they were allowed to come to Court with an incomplete cause of action.
When (they filed the suit merely alleging possession and dispossession they conceded
an essential part of the cause of action.
The term cause of action is not defined in the Tenancy Act or in any other statute. By
long user, however, it has acquired a definite connotation which can be presumed to
have been known to the Legislature. This meaning which has been considered in
numerous cases can be traced back to the early English case of Cook v. Gill (1873) 8 CP
107: 28 LT 32 from which it was quoted with approval by Lord Esher M. R. in Read v.
Brown (1888) 22 QBD 128. According to that definition the term means

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 "every fact which it would be necessary for the plaintiff to prove, if traversed,
in order to support his right to the judgment of the court, but does not
comprise every piece of evidence which is necessary to prove each fact but
every fact which is necessary to be proved."
A Full Bench of this Court in Murti v. Bhola Ram ILR 16 All 165 interpreted the term as
meaning
"the whole bundle of material and essential facts which it is necessary for the
plaintiff to prove in order to entitle him to succeed in the suit."
In Mt. Chand Koer v. Pratab Singh 15 I.A. 156 the Privy Council laid down that
"the cause of action refers to the media upon which the plaintiff asks the court
to arrive at a conclusion in his favour."
After observing
"Now the cause of action has no relation whatever to the defence which might
be set up by the defendants, nor does it depend upon the character of the relief
prayed for the plaintiff."
It is thus put beyond the pale of controversy that the term cause of action does not
include everything which has happened upto the date of the suit but embraces only
these essential facts which it is necessary for the plaintiff to prove in order to get the
relief which he claims. In a suit under Section 9 of the Specific Relief Act, the only thing
which it is necessary for the plaintiff to prove, if traversed, is that he was in possession,
that he was dispossess- ed, that dispossession took place otherwise than in accordance
with law and that it took place within six months of the suit. No other facts need be
alleged or proved.
These facts alone can therefore be considered to constitute the entire cause of action for
a suit under Section 9 of the Specific Relief Act. It is not necessary for a plaintiff in a
suit of that kind to allege or to prove any other facts. In a suit of that kind therefore if a
plaintiff comes to court only with these allegations and no other it cannot be said that
he has come to court with an incomplete cause of action. Considering the nature of
action enumerated in the Fourth Schedule of the Tenancy Act it is obvious that on these
facts alone the plaintiff cannot expect to get any relief from the revenue court.
The revenue, court will not grant any relief or even entertain any suit based on these
allegations only. On these allegations relief could be had only from the civil court under
Section 9 of the Specific Relief Act. Section 242 of the Tenancy Act cannot, therefore,
apply to such a suit or exclude it from the cognizance of the civil court.
19. It is true that no plaintiff can be permitted to confer jurisdiction on one court or to
oust the jurisdiction of another court by making incomplete or twisted allegations.
There is also no doubt about the proposition that as the question of jurisdiction has to
be determined initially on the allegations of the plaint, a suit may be entertained by a
court if it is triable by it on the allegations made in the plaint, but if subsequently the
allegations are found to be incorrect the suit is liable to be dismissed.
These principles, unexceptionable as they are, do not, however, affect the matter in
hand in any manner. The plaintiffs in the present case made only those allegations in
their plaint which it was necessary for them to make in view of the terms of Section 9 of

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the Specific Relief Act. They were not bound to allege their own title or the nature of
rights which the defendants could or were claiming and even if they had made these
allegations they could not have been taken into consideration.
There was, therefore, no question of the plaintiff's coming to court with incomplete or
twisted allegations. The allegations they had made were in fact the only allegations that
could have been made in a suit of that nature. The defendant too, could not be allowed
to raise any question or title in the suit either directly or indirectly. There was therefore
no question of any fact being put forward by either of the parties on the basis of which
the court could hold that the suit should have been filed in the revenue court,
The suit of the plaintiffs could certainly have been dismissed if their allegations were
found to be incorrect. In this case however their allegations of fact have been found by
the learned Munsif to be correct and he has disbelieved the case to the contrary set up
by the defendants. The suit of the plaintiff could not therefore be thrown out on the
ground that it did not lie in the civil court and should have been filed in the revenue
court. In view of the express terms of Section 9 of the Specific Relief Act the defendants
could not defeat the suit by raising a question of their being in rightful possession.
If they had wrongfully dispossessed the plaintiffs by taking the law into their own hands
they were bound to restore possession to the plaintiffs. It under the law they could
claim a right to take possession, for establishing that right, if they had it, they had their
remedy in a regular suit.
20. It is urged that to allow the plaintiffs to get a decree under Section 9 of the Specific
Relief Act only to have it upset soon after by a regular suit would amount to
encouraging unnecessary litigation. No court should pass a decree of that kind. The
policy of law which underlies the enactment of Section 9 of the Specific Relief Act is
however to deprive a wrong doer of any possible advantage which he may claim on the
basis of his wrongful act.
Possession wrongfully taken must therefore be restored and a claim of title cannot be
allowed to be set up even in execution of the decree under Section 9 vine Parmanand v.
Sm. Chhimmawati MANU/UP/0022/1955 : AIR1955All64 and Bhag-wan Din v. Chhotey
L al 1955 AL J 672 (M). The only course that will be open to the wrong doer was
therefore to hand back possession and then if he can take it back by establishing his
own title. A Court cannot therefore refuse to entertain a suit under Section 9 simply on
the pretext of discouraging, multiplicity of litigation.
2 1 . None of the contentions pressed by the learned counsel for the applicants,
therefore, appear to be tenable and with due deference to the learned Judges who
decided the case of Jag Narain v. Bhagwati Prasad (B), we think that to the extent to
which that case supports the applicants' contention it has not been correctly decided.
The other decision in Ganga Din v. Gokul Prasad (A), appears to be distinctly preferable
and, if we may say so with respect, lays down the correct law.
22. With the exception of the case of Jag Narain (B), and some subsequent cases in
which it has been followed the trend of opinion on this question also appears to be in
consonance with the view that we are disposed to take. The question appears to have
arisen first in Khushnud Husain v. Janki Prasad MANU/UP/0108/1931 : AIR1931All663 .
The plaint in that suit had been framed as one under Section 9 of the Specific Relief Act.
The defendant wanted to plead tenancy and urged that the suit should have been filed
in the revenue court.

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The plea was not accepted and it was held that as there was nothing to show that the
suit as framed was not triable by the civil court that court could entertain it. The case
was followed in Brij Narain Lal v. Gokul Prasad 1935 AL J 813. A similar case arose in
Oudh with reference to Section 108 of the Oudh Rent Act in Rajai Singh v. Surai Bali
MANU/OU/0067/1941. and in that case also it was held that a suit under Section 9 of
the Specific Relief Act lay only in the civil court and could not be filed in the revenue
court. The decision in Lal Bahadur Singh v. Suraj Pal Singh MANU/UP/0023/1946 :
AIR1946All486 is to the same effect.
23. In Beni Madho Singh v. Prag. MANU/UP/0223/1948 : AIR1949All510the plaintiff
instituted a suit for possession under Section 9 of the Specific Relief Act, but made
allegations of title also in the plaint He alleged that the land had been mortgaged with
his ancestors and the right to redeem having come to an end by lapse of time, he had
become the lawful tenant of the land. He had however been dispossessed without his
consent by the defendant. It was held that the suit should have been filed in the
revenue court under Section 180 because according to the allegations made in the plaint
itself, the suit was not based merely upon the summary cause of action provided by
Section 9 of the Specific Relief Act.
24. In Jagdish Singh v. Mehi LaL 1950 AL J 645 again, a suit under Section 9 of the
Specific Relief Act was held to be maintainable in the civil court in spite of Section 240
of the Tenancy Act. The view was confirmed by a Division Bench in
MANU/UP/0153/1950 : AIR1950All407 . One of the Judges constituting the Bench had
earlier decided the case of MANU/UP/0223/1948 : AIR1949All510 .That case was
distinguished on facts. T hi s Division Bench case was later followed in Ram Lakhan
Tewari v. Mt. Tulsa MANU/UP/0110/1954 : AIR1954All199 , Ram Naresh v. Deo Narain
MANU/UP/0064/1954 : AIR1954All109 , and Rudan v. Ujagar Singh
MANU/UP/0362/1953 : AIR1953All733 .
25. We are therefore of opinion that the question referred to us should be answered in
the negative. It is answered accordingly. Let the record be returned with the above
answer to the referring court.

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